THE QUEEN vARTHUR WILLIAM TAYLOR - [2003] NZCA 190

IN THE COURT OF APPEAL OF NEW ZEALAND
CA 58/03
THE QUEEN
v
ARTHUR WILLIAM TAYLOR
Hearing:24 July 2003

Coram:Gault P
Baragwanath J
Panckhurst J
Appearances: C J Tennet for Appellant

K Raftery for Crown

Judgment:11 August 2003

JUDGMENT OF THE COURT DELIVERED BY PANCKHURST J

[1] This conviction appeal is by way of rehearing in terms of the Crimes (Criminal Appeals) Amendment Act 2001. The appellant was found guilty of aggravated robbery in July 1994 and later that month he was sentenced to two years imprisonment, cumulative upon an effective term of twelve years imprisonment which he was already serving in relation to other offences. Subsequently an appeal against conviction was dismissed on the papers in December 1994. The appeal has now been fully reargued.
[2] The grounds of appeal are effectively three-fold:
[a]that the trial Judge erred in his summing-up by commenting adversely on the appellant’s election not to give evidence,
[b]that a ruling which prevented reference to the fact that the principal offenders had been discharged before trial pursuant to s347 of the Crimes Act 1961 occasioned a miscarriage of justice, and
[c]that the trial Judge erred in admitting the evidence of the main Crown witness, Mr A, and in not sufficiently warning the jury concerning the risks attendant upon acceptance of his evidence.

Before turning to the individual grounds it is convenient to shortly outline the case at trial.
The Crown case
[3]       On 21 June 1991 an antique and jewellery store in Remuera Road, Auckland was robbed at gun-point by two armed and disguised men. They left the shop on a motor-cycle with jewellery to a value well in excess of $200,000.
[4]       Subsequently persons named Peers and Condren were charged as the principal offenders in the robbery. However, they obtained a discharge before trial pursuant to s347. Such ruling was made by another Judge.
[5]       The case against Mr Taylor was largely dependent upon evidence supplied by Mr A. He was a criminal and was in prison in June 1991, when the robbery occurred. While there he said that he was visited by the appellant whom he had known for many years. Mr Taylor told him, he said, of an intention to commit a robbery upon the antique and jewellery shop. Contact between Mr A and the appellant continued throughout 1991 during which, according to Mr A, details of commission of the robbery were revealed to him.
[6]       In early 1992 Mr A was released from prison and spent some weeks residing with the appellant and his wife (who was charged with receiving jewellery from the robbery and stood trial with her husband). During this time there were further discussions in which the appellant revealed additional details relevant to the robbery.
[7]       In the result Mr A gave evidence before the jury based on such discussions to the effect that the appellant was the organiser of the robbery. He said the actual offenders used a motor-cycle to commit the crime. The appellant hired a…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

AGLC: THE QUEEN vARTHUR WILLIAM TAYLOR [2003] NZCA 190
Case: [2003] NZCA 190
Decision Date: 11 August 2003

CaseChat Overview and Summary

In the Court of Appeal of New Zealand, the case of The Queen v Arthur William Taylor was heard on 24 July 2003. The appellant, Taylor, was appealing his conviction for aggravated robbery, which was affirmed in July 1994. Taylor had been sentenced to two years imprisonment, which was to run concurrently with a twelve-year sentence he was already serving for other offences. His initial appeal against the conviction was dismissed in December 1994, but the case was reargued under the provisions of the Crimes (Criminal Appeals) Amendment Act 2001. The grounds of appeal centred around three key issues: whether the trial judge erred in commenting on Taylor's decision not to give evidence, whether the exclusion of information about the discharge of the principal offenders led to a miscarriage of justice, and whether the judge erred in admitting the evidence of the main Crown witness, Mr A, and in not sufficiently warning the jury about the risks of accepting his evidence.

The court found that the trial judge's comments on Taylor's failure to give evidence, while strong, were not inappropriate given the context of the trial. The judge had correctly identified the significance of Taylor's decision not to testify, particularly in light of the key witness, Mr A, being a prison inmate whose testimony was based on conversations with Taylor. Despite the repetition of comments on this matter, the court was satisfied that the judge's overall summing-up did not risk distracting the jury from the onus of proof. The court also found that the exclusion of information about the principal offenders' discharge did not lead to a miscarriage of justice, as the jury was inevitably aware of the acquittals through other evidence. Finally, the court concluded that the judge had adequately warned the jury about the need for caution in assessing Mr A's evidence, ensuring that the requirements of the Evidence Act 1908 were met.

In light of these findings, the appeal against Taylor's conviction was dismissed.

Orders